Alexakis v Masters (No 3) [2023] NSWSC 694

Supreme Court New South Wales

Medium Neutral Citation: Alexakis v Masters (No 3) [2023] NSWSC 694 Hearing dates: On the papers Date of orders: 23 June 2023 Decision date: 23 June 2023 Jurisdiction: Equity Before: Henry J Decision: (1) Order that the plaintiff's costs of the proceedings, calculated on the indemnity basis, be paid out of the estate of the late Raymond John McClure (deceased) from the gift of the residue and remainder made to the plaintiff under clause 2(D)(i) of the deceased's will dated 10 July 2017. (2) Make no order as to the costs of the first, second, third and fourth defendants/cross-claimants with the intention that they bear their own costs of the proceedings. Catchwords: SUCCESSION — contested probate — costs — whether costs incurred by unsuccessful defendants/cross-claimants should be borne by estate — whether defendants/cross-claimants should bear their own costs — whether defendants/cross-claimants should pay any costs of plaintiff — where undue influence raised — where finding that it was reasonable to investigate that and other matters — where finding that deceased and plaintiff did not cause litigation Legislation Cited: Civil Procedure Act 2005 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Ballam v Ferro (No 2) [2022] NSWSC 1358 Becker v Public Trustee of New South Wales [2006] NSWSC 1146 Blendell v Byrne; Estate of Blendell (No 2) [2019] NSWSC 798 Brown v Guss (No 2) [2015] VSC 57 Chant v Curcuruto [2021] NSWSC 882 Estate of Gertrude Martha Elisabeth Hacke, The Public Trustee v Wilson (Unreported, Supreme Court of NSW, Powell J, 13 November 1985) Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502 Gray v Hart; Estate of Harris (No 2) [2012] NSWSC 1562 Middlebrook v Middlebrook (1962) 36 ALJR 216 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244 Re Cutcliffe's Estate [1959] P 6 Re Estate Rofe [2021] NSWSC 257 Re the Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Shorten v Shorten (No 2) [2003] NSWCA 60 Starr v Miller; Starr v Miller (No 2) [2021] NSWSC 685 Trustee for the Salvation Army (NSW) Property Trust t/as Salvation Army v Becker (No 2) [2007] NSWCA 194 Texts Cited: Gino Dal Pont, Law of Succession (3rd ed, 2020, LexisNexis Butterworths) Roland Hastings and George Weir, Probate Law and Practice (2nd ed, 1948, The Law Book Co of Australasia Pty Ltd) Category: Costs Parties: Peter Alexakis (Plaintiff/First Cross-Defendant on the First, Second and Third Cross-Claims)